HM Courts & Tribunals Service (HMCTS) with effect from 1 April 2011
Highlighted decisions July 2020
Great Britain and Northern Ireland decisions highlighted by the Editorial Board in July 2020
Disability Living Allowance
MOC (by MG) v SSWP (DLA) [2020] UKUT 134 (AAC)
CDLA/1920/2018
The rules in regs 8 and 12A of the Social Security (Disability Living Allowance) Regulations 1991 restricting payability where an adult has been an inpatient in an NHS hospital for more than 28 days did not breech art.14 ECHR in the case of a patient with severe learning disabilities. Mathieson v SSWP [2015] UKSC 47 distinguished..
Employment and Support Allowance
RP v SSWP (ESA) [2020] UKUT 148 (AAC)
CCE/2506/2018
Provision by SofS of ‘action plans’ and ESA ‘adjudication histories’ to FtTs on ESA appeals – FN v SSWP [2016] AACR 24 considered – SofS appeals responses in ESA work capability appeals ought, where relevant, to have included the claimant’s ESA adjudication history and action plan since July 2018 - role of Work Coach in setting work-related activity – relevance of Work Coach to whether regulation 35(2) of the ESA Regs is satisfied.
European Union Law
HK v SSWP (PC) [2020] UKUT 73 (AAC)
CSPC/330/2019
The line of authority based on C-370/90 Surinder Singh, C-291/05 Eind and C-456/12 O and B precludes a requirement that the British citizen who has worked in an EU member State and then returns, with a non-British family member, to the UK, should be a "qualified person" within reg 6 of the Immigration (European Economic Area) Regulations 2016 following their return, if the family member is to be able to derive a right of residence from them. Reg 9 of the 2016 Regulations must be read accordingly.
Forfeiture
Wright v Secretary of State for Work and Pensions [2020] UKUT 155 (AAC)
CFP/2301/2018
The forfeiture rule does not apply to a person who (a) was found to have done the act comprised within a charge of murder, but (b) was unfit to plead by reason of insanity.
Housing Benefit
KH v Bury MBC and SSWP (HB) [2020] UKUT 50 (AAC)
CH/2389/2016
Whether the “genuine chance of being engaged” test under regulation 6(2)(b)(ii) of the Immigration (EEA) Regulations 2006 is contrary to EU law in respect of those with retained worker status –– Article 7(3)(b) of Directive 2004/38/EC - whether EU law differs in this context between mere workseekers and those seeking to retain worker status by jobseeking - use of referral power under section 9(5)(b) of the Tribunals, Courts and Enforcement Act 2007.
AB v London Borough of Camden [2020] UKUT 158 (AAC)
CH/3284/2017
The payment of a houseboat licence fee was an eligible cost for housing benefit purposes since it fell within regulation 12(1)(b) of the Housing Benefit Regulations 2006. The decision agrees with the decision in Kirklees MBC v JM [2018] UKUT 219 (AAC) that such payments are not within regulation 12(1)(d) - they are not payments for 'use and occupation' - but disagrees with the Social Security Commissioner's decision in CH 844 2002 that, in relation to housing benefit claims in respect of houseboats, regulation 12(1)(b) only catches rental payments made to the owner of a houseboat.
Human rights law
AR v Secretary of State for Work and Pensions (BB) [2020] UKUT 165 (AAC)
CG/1781/2017
Considers what was said in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 about the application of section 3 of the Human Rights Act and analyses what the “grain” of the 1992 Act is.
Decides that it is an ingrained feature of the legislation that Parliament expressly and intentionally provided a benefit to those who have been married as a matter of English law, and it is not possible to read the legislation in any other way. To do so would be to cross the divide between the interpretative function of the courts and matters of policy that are democratically entrusted to Parliament.
Information Rights
ICO -v- Poplar Housing Association and Regeneration Community Association and People's Information Centre [2020] UKUT 182 (AAC)
GIA/1078/2019
Environmental Information – whether the respondent housing association is a public authority within the meaning of Article 2(2)(b) of Directive 2003/4/EC on public access to environmental information.
Job Seekers Allowance
CL v Secretary of State for Work and Pensions [2020] UKUT 146 (AAC)
CJSA/1053/2019
This decision deals with the requirement that a claimant must have been 'living in' in the common travel area for three months before entitlement to a jobseeker's allowance can begin. It decides that: (a) 'living in' must be applied on its ordinary meaning and not as a modified form of habitual residence; and (b) the test is valid in EU law.
Mental Health
PM v Midlands Partnership NHS Foundation Trust [2020] UKUT 69 (AAC)
HM/2258/2019
Mental Health – s.72(1)(c)(iv) – When Appropriate Medical Treatment is Available - considers the relevance of legal impediments to administering medical treatment to the issue of whether medical treatment can be said to be “appropriate” and “available”. Gives guidance on the meaning of “appropriate”, “available” and “medical treatment”.
This is the first decision to deal with the issue of lawfulness of giving medical treatment in the context of the discharge criteria, and the first significant discussion of the concept of “availability” in the statutory criteria.
GM v Dorset healthcare NHS Trust and the Secretary of State for Justice [2020] UKUT 152 (AAC)
HM/2172/2019
When a patient who was detained pursuant to section 3 of the Mental Health Act 1983 is made subject to a hospital order without a restriction order, the First-tier Tribunal has no jurisdiction on any application or reference that was lodged before the order was made.
SM v Livewell Southwest CIC [2020] UKUT 191 (AAC)
HM/1690/2018
In the majority view, the decision in VS v St Andrew's Healthcare [2018] UKUT 250; [2019] AACR 4 remains good law as to the capacity a patient requires in order to make an application to the FtT. In the view of the minority, VS sets the bar too high in requiring an understanding that the FtT has power to discharge the patient. The panel offered guidance on a number of issues which may arise where a patient's capacity is in doubt, including (a) encouraging readier use of the ability to raise the matter with the Secretary of State with a view to him/her referring the patient's case to the FtT under MHA s.67 and (b) identifying areas in patient records and other documentation where changes might facilitate the FtT's task.
Personal independence payment
CH (by TH) v SSWP (PIP) [2020] UKUT 70 (AAC)
CPIP/2836/2018
In GD v SSWP (PIP) [2017] UKUT 415 (AAC), para 5 sets out evidence given to the judge by SSWP as to the Department's practice in asking PIP reassessment claimants whether they wanted DLA evidence to be considered for their PIP claim. That case relates to a claim made some time before the claim in the present case, which was made by phone in December 2016. On the evidence in the present case, there is no indication that the claimant was ever asked about use of her DLA evidence. Where relevant, FtTs should probe whether what is said at para 5 of GD is accurate in relation to the particular time which the case before them concerns and its application to that case.
RJ v. SSWP (PIP) [2020] UKUT 107 (AAC)
CPIP/1962/2018
Personal independence payment – claimant over 65 – DLA Transfer Case – lacuna in legislation – no exemption from s.83(1) of Welfare Reform Act 2012 where revision or supersession made – whether relevant wording read down to enable legislation to be applied in compliance with European Convention on Human Rights - extra statutory concession.
BD v Secretary of State for Work and Pensions [2020] UKUT 178 (AAC)
CPIP/2110/2019
The Secretary of State has power to supersede a decision awarding a personal independence payment that was made by the First-tier Tribunal. The decision explains the relationship between regulation 11 of the Personal Independence Payment Regulations 2013 and regulation 26 of the Universal Credit, etc Regulations 2013. It also explains the nature of a supersession under regulation 26 and the way that the grounds for supersession operate under section 10 of the Social Security Act 1998.
Special Educational Needs
F v Responsible Body of School W [2020] UKUT 112 (AAC)
HS/2703/2019
Refusing to register part of a disability discrimination claim, on the ground eventually stated to be that that it had been insufficiently pleaded, is capable of being done under the broad powers of rule 5 in appropriate cases, but only if done on a sufficiently defined basis and accompanied by procedural safeguards that were lacking here. However, (applying by analogy dicta of Lord Steyn in Anyanhwu v South Bank Students Union [2001] UKHL 14) caution should be exercised in bringing disability discrimination claims to an unduly early end.
Universal Credit
GDC v SSWP (UC) [2020] UKUT 108 (AAC)
CUC/968/2019
Date of claim - Online claim for universal credit - whether defective claim for UC made at point where claimant starts but does not complete process of entering information on online claim form - Novitskaya v Brent LB considered - regulation 8 of Claims and Payments Regulations 2013 considered; also Social Security (Electronic Communications) Consolidation and Amendment Directions 2011.
PP v SSWP (UC) [2020] UKUT 109 (AAC)
CUC/1389/2019
Universal credit - claim for UC made online - claim "closed" for non-attendance for interview to discuss self-employment - appeal rights - whether appealable decision subject to the requirement for mandatory reconsideration.
